1846. POWLES v. PAGE. debt then due from the firm to the bank, or a debt subsequently accruing (there having been no notification of the dissolution of the partnership in the gazette), unless the bank had otherwise notice of the fact. The way in which it is sought to fix the bank with notice that the defendant had ceased to be a member of the firm of Grantham, Page, & Co., is, by shewing that Dixon, one of the partners, was a shareholder in the bank, and one of the directors. The case, however, states, that Dixon, as such director, had no share in the management of the banking accounts; and there is no evidence to shew that Dixon's knowledge was communicated to the bank. The statute 1 & 2 Vict. c. 96. s. 1. (made perpetual by the 5 & 6 Vict. c. 85.), which empowers banking copartnerships to sue and be sued in the name of one of their public officers, has the effect of making them quasi corporations. Knowledge of an individual shareholder or member does not, as in the case of an ordinary partnership, affect the body. In Hill v. The Manchester and Salford Waterworks Co. (a), by a clause in the act of parliament incorporating the company, it was enacted that the clerk should, in a book provided by the company, keep an account of all acts, proceedings, and transactions of the company, and that every proprietor should have liberty to inspect the same, and take copies of the entries; and it was held that entries of the proceedings in the book so kept by the clerk, were not admissible in evidence on behalf of the company against one of their own members suing them; Lord Denman, C. J., observing, that "a proprietor entering into a contract with the company, must be deemed a stranger, and can be affected by no entry made under orders from the entire body." So, in Dunston v. The Imperial Gas Light and Coke Company (b), which was an action (a) 5 B. & Ad. 866., 2 N. (b) 3 B. & Ad. 125. & M. 573. by assignees of a bankrupt for certain fees alleged to be due to the bankrupt for his attendance as a director of the company, Parke, B., said: "As to the objection that the bankrupt in this case was a member of the corporation, and therefore could not sue them; a member of a corporation is, for this purpose, as distinct from the corporate body as any third person." If that be so with regard to a contract, it must equally be so with reference to notice or knowledge. The case of Steward, Public Officer of the East of England Bank v. Dunn, Public Officer of the Southern District Banking Company (a), is more immediately applicable. There, in an action by one banking company against another, it was sought to affect the plaintiff with notice of a fact, by reason of its being known to two individuals who were members of both companies: and Parke, B., said: "It is argued that two members of the plaintiff's company knew of this regulation. I am inclined to think, however, that this objection is removed by the 1 & 2 Vict. c. 96. Since that act, a company of this kind is in the nature of a corporation, not an ordinary copartnership suing jointly; so that notice to one of its members is not notice to all." The cases of Duncan v. Chamberlayne (b) and Ex parte Thomas, in re Styan (c), may be relied on for the defendant. The doctrine of those cases, however, underwent consideration, and was virtually overruled, by the Vice-Chancellor, in Thompson v. Speirs (d), where the question arose upon the effect of an assignment of a policy in the Equitable Assurance Company, without notice, with reference to the 72nd section of the 6 G. 4. c. 16. All the inconveniences pointed out in that case would result here from holding that a notice to Dizon operated as notice to the bank. The doctrine of (a) 12 M. & W.655. (d) 14 Law J., Chancery, p. 453. N. S., 1846. POWLES v. PAGE. 1846. POWLES V. PAGE. appropriation, derived from Clayton's case (a), cannot apply, unless the bank be fixed with notice or knowledge of the alteration in the firm. Byles, Serjt. (with whom was Tomlinson), for the defendant. It appears from the case, that, in February, 1840, when the account was opened by Grantham, Page, & Co. with the bank, there existed in Liverpool three firms trading under the respective names of Grantham, Page, & Co., John Grantham & Co., and Page & Grantham; the first consisting of Page (the defendant), and Grantham, Mather, and Dixon; the second, of Grantham, Mather, and Dixon; the third, of the defendant Page and Grantham only. In January, 1842, an arrangement was come to which clearly operated a dissolution of the firm of Grantham, Page, & Co., inter se. The main question for the consideration of the court is, whether the bank had notice, actual or constructive, of that dissolution, so as to discharge the defendant in respect of advances subsequently made. There may be some difficulty in saying that there was actual notice; but it is submitted that the circumstance of Dixon, one of the members of the firm of Grantham, Page, & Co., being also a partner in the bank, and one of its directors, at all events fixes them with constructive notice, upon the authority of Dunn v. Chamberlayne, which is not affected by the subsequent case of Thompson v. Speirs. The fact of the real plaintiffs here being a joint-stock bank, makes no difference in this respect; the operation of the statutes 1 & 2 Vict. c. 96., and 5 & 6 Vict. c. 85., being, not to make these copartnerships bodies corporate, but merely to enable them to sue and be sued by and in the name of an individual, so as to obviate the necessity of having recourse (a) 1 Meriv. 604. to difficult and expensive proceedings in a court of equity. Hill v. The Manchester and Salford Waterworks Company, and Dunston v. The Imperial Gas-Light and Coke Company, were both cases of corporations acting under seal. In those cases, it could no more be said that the whole body was affected by notice to one of its members, than it could be that the Bank of England is bound by a notice to one who is a holder of bank stock. And the opinion expressed by Parke, B., in Steward v. Dunn is a mere obiter dictum, applicable to a state of facts falling far short of those of the present case. If notice to an individual member of the copartnership will not suffice, it follows that a notice to nine hundred and ninety-nine, the whole company consisting of one thousand, would be equally ineffectual. But, if notice to a member is not enough, surely notice to a director must bind the copartnership. Notice to the manager would confessedly have sufficed; and, according to Mayhew v. Eames (a), notice to a principal is notice to his agent. It was the duty of Dixon, who knew that Page had been released from responsibility for the engagements of the firm of which he had been a member, to communicate that fact to the other members of the board. Assuming, then, that the bank had either actual or constructive notice of the dissolution of the partnership of Grantham, Page, & Co., on the 6th of January, 1842, it is quite clear, according to the doctrine of Clayton's case (b), that Page is entitled to say that the balance then due to the bank has been liquidated by the subsequent payments made to them. In Simson v. Ingham (c), Bayley, J., says: "The general rule is, that the party who pays money has a right to apply that payment as he thinks fit. If there are several debts due from him, he has a (a) 3 B. & C. 601., 5 D. & R. 484., 1 C. & P. 550. (b) 1 Meriv. 604. (c) 2 B. & C. 65., 3 D. & R. 249. 1846. POWLES v. PAGE. 1846. POWLES v. PAGE. right to say to which of those debts the payment shall be applied. If he does not make a specific application at the time of payment, then the right of application generally devolves on the party who receives the money. But there is a third rule, viz., that, where one of several partners dies, and the partnership is in debt, and the surviving partners continue their dealings with a particular creditor, and the latter joins the transactions of the old and the new firm in one entire account, then the payments made from time to time by the surviving partners, must be applied to the old debt." And that rule was adopted by this court in the subsequent case of Smith v. Wigley (a). There, W. and T., partners, were indebted to the plaintiff: after the dissolution of the partnership, T. also became indebted on his separate account to the plaintiff: and it was held, that, in the absence of any specific appropriation by either party, payments made by T. after the dissolution must go in reduction of the entire account, and consequently must discharge the earlier items. Channell, Serjt., was heard in reply. Cur, adv. vult. TINDAL, C. J., now delivered the judgment of the court. This was an action of assumpsit, brought to recover the balance of a banking account. The declaration contained counts for work and labour and commission, and the money counts. The defendant pleaded—first, non assumpsit-secondly, payment - thirdly, that the defendant was sued as one of a copartnership trading under the name of Grantham, Page, & Co., consisting of the defendant, John Grantham, John Philips Mather, (a) 3 M. & Scott, 174. |